LANGE v. CALIFORNIA
Certiorari To The United States Court Of Appeal Of California, First Appellate Division
No. 20–18. Argued February 24, 2021—Decided June 23, 2021
This case arises from a police officer’s warrantless entry into petitioner Arthur Lange’s garage. Lange drove by a California highway patrol officer while playing loud music and honking his horn. The officer began to follow Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage. The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit.
The State charged Lange with the misdemeanor of driving under the influence. Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It concluded that Lange’s failure to pull over when the officer flashed his lights created probable cause to arrest Lange for the misdemeanor of failing to comply with a police signal. And it stated that Lange could not defeat an arrest begun in a public place by retreating into his home. The pursuit of a suspected misdemeanant, the court held, is always permissible under the exigent-circumstances exception to the warrant requirement. The California Supreme Court denied review.
Held: Under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home. Pp. 3–16.
(a) The Court’s Fourth Amendment precedents counsel in favor of a case-by-case assessment of exigency when deciding whether a suspected misdemeanant’s flight justifies a warrantless home entry. The Fourth Amendment ordinarily requires that a law enforcement officer obtain a judicial warrant before entering a home without permission. Riley v. California, 573 U. S. 373, 382. But an officer may make a warrantless entry when “the exigencies of the situation,” considered in a case-specific way, create “a compelling need for official action and no time to secure a warrant.” Kentucky v. King, 563 U. S. 452, 460; Missouri v. McNeely, 569 U. S. 141, 149. The Court has found that such exigencies may exist when an officer must act to prevent imminent injury, the destruction of evidence, or a suspect’s escape.
The amicus contends that a suspect’s flight always supplies the exigency needed to justify a warrantless home entry and that the Court endorsed such a categorical approach in United States v. Santana, 427 U. S. 38. The Court disagrees. In upholding a warrantless entry made during a “hot pursuit” of a felony suspect, the Court stated that Santana’s “act of retreating into her house” could “not defeat an arrest” that had “been set in motion in a public place.” Id., at 42–43. Even assuming that Santana treated fleeing-felon cases categorically, that statement still does not establish a flat rule permitting warrantless home entry whenever a police officer pursues a fleeing misdemeanant. Santana did not resolve the issue of misdemeanor pursuit; as the Court noted in a later case, “the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established” one way or the other. Stanton v. Sims, 571 U. S. 3, 8, 10.
Misdemeanors run the gamut of seriousness, and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. The Court has held that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. See Welsh v. Wisconsin, 466 U. S. 740, 742–743. Add a suspect’s flight and the calculus changes—but not enough to justify a categorical rule. In many cases, flight creates a need for police to act swiftly. But no evidence suggests that every case of misdemeanor flight creates such a need.
The Court’s Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry. Pp. 3–12.
(b) The common law in place at the Constitution’s founding similarly does not support a categorical rule allowing warrantless home entry whenever a misdemeanant flees. Like the Court’s modern precedents, the common law afforded the home strong protection from government intrusion and it generally required a warrant before a government official could enter the home. There was an oft-discussed exception: An officer, according to the common-law treatises, could enter a house to pursue a felon. But in the misdemeanor context, officers had more limited authority to intrude on a fleeing suspect’s home. The commentators generally agreed that the authority turned on the circumstances; none suggested a rule authorizing warrantless entry in every misdemeanor-pursuit case. In short, the common law did not have—and does not support—a categorical rule allowing warrantless home entry when a suspected misdemeanant flees. Pp. 12–16.
Vacated and remanded.
Kagan, J., delivered the opinion of the Court, in which Breyer, Sotomayor, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and in which Thomas, J., joined as to all but Part II–A. Kavanaugh, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Kavanaugh, J., joined as to Part II. Roberts, C. J., filed an opinion concurring in the judgment, in which Alito, J., joined.
MAHANOY AREA SCHOOL DISTRICT v. B. L., a minor, by and through her father, LEVY, et al.
Certiorari To The United States Court Of Appeals For The Third Circuit
No. 20–255. Argued April 28, 2021—Decided June 23, 2021
Mahanoy Area High School student B. L. failed to make the school’s varsity cheerleading squad. While visiting a local convenience store over the weekend, B. L. posted two images on Snapchat, a social media application for smartphones that allows users to share temporary images with selected friends. B. L.’s posts expressed frustration with the school and the school’s cheerleading squad, and one contained vulgar language and gestures. When school officials learned of the posts, they suspended B. L. from the junior varsity cheerleading squad for the upcoming year. After unsuccessfully seeking to reverse that punishment, B. L. and her parents sought relief in federal court, arguing inter alia that punishing B. L. for her speech violated the First Amendment. The District Court granted an injunction ordering the school to reinstate B. L. to the cheerleading team. Relying on Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, to grant B. L.’s subsequent motion for summary judgment, the District Court found that B. L.’s punishment violated the First Amendment because her Snapchat posts had not caused substantial disruption at the school. The Third Circuit affirmed the judgment, but the panel majority reasoned that Tinker did not apply because schools had no special license to regulate student speech occurring off campus.
Held: While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case. Pp. 4–11.
(a) In Tinker, we indicated that schools have a special interest in regulating on-campus student speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” 393 U. S., at 513. The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices. Pp. 4–6.
(b) But three features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. Pp. 6–8.
(c) The school violated B. L.’s First Amendment rights when it suspended her from the junior varsity cheerleading squad. Pp. 8–11.
(1) B. L.’s posts are entitled to First Amendment protection. The statements made in B. L.’s Snapchats reflect criticism of the rules of a community of which B. L. forms a part. And B. L.’s message did not involve features that would place it outside the First Amendment’s ordinary protection. Pp. 8–9.
(2) The circumstances of B. L.’s speech diminish the school’s interest in regulation. B. L.’s posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. P. 9.
(3) The school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community is weakened considerably by the fact that B. L. spoke outside the school on her own time. B. L. spoke under circum stances where the school did not stand in loco parentis. And the vulgarity in B. L.’s posts encompassed a message of criticism. In addition, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Pp. 9–10.
(4) The school’s interest in preventing disruption is not supported by the record, which shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about the content of B. L.’s Snapchats. App. 82–83. This alone does not satisfy Tinker’s demanding standards. Pp. 10–11.
(5) Likewise, there is little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad. P. 11.
964 F. 3d 170, affirmed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett, JJ., joined. Alito, J., filed a concurring opinion, in which Gorsuch, J., joined. Thomas, J., filed a dissenting opinion.
Collins et al. v. Yellen, Secretary of the Treasury, et al.
Certiorari To The United States Court Of Appeals For The Fifth Circuit
No. 19–422. Argued December 9, 2020—Decided June 23, 2021 1
When the national housing bubble burst in 2008, the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), two of the Nation’s leading sources of mortgage financing, suffered significant losses that many feared would imperil the national economy. To address that concern, Congress enacted the Housing and Economic Recovery Act of 2008 (Recovery Act), which, among other things, created the Federal Housing Finance Agency (FHFA)—an independent agency tasked with regulating the companies and, if necessary, stepping in as their conservator or receiver. See 12 U. S. C. §4501 et seq. At the head of the Agency, Congress installed a single Director, removable by the President only “for cause.” §§4512(a), (b)(2).
Soon after the FHFA’s creation, the Director placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury. Under those agreements, Treasury committed to providing each company with up to $100 billion in capital, and in exchange received, among other things, senior preferred shares and quarterly fixed-rate dividends. In the years that followed, the agencies agreed to a number of amendments, the third of which replaced the fixed-rate dividend formula with a variable one that required the companies to make quarterly payments consisting of their entire net worth minus a small specified capital reserve.
A group of the companies’ shareholders challenged the third amend ment on both statutory grounds—that the FHFA exceeded its authority as a conservator under the Recovery Act by agreeing to the new variable dividend formula—and constitutional grounds—that the FHFA’s structure violates the separation of powers because the Agency is led by a single Director, removable by the President only for cause. The District Court dismissed the statutory claim and granted summary judgment in the FHFA’s favor on the constitutional claim. The Fifth Circuit reversed the District Court’s dismissal of the statutory claim, held that the FHFA’s structure violates the separation of powers, and concluded that the appropriate remedy for the constitutional violation was to sever the removal restriction from the rest of the Recovery Act, but not to vacate and set aside the third amendment.
1. The shareholders’ statutory claim must be dismissed. The “anti-injunction clause” of the Recovery Act provides that unless review is specifically authorized by one of its provisions or is requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” §4617(f). Where, as here, the FHFA’s challenged actions did not exceed its “powers or functions” “as a conservator,” relief is prohibited. Pp. 12–17.
(a) The Recovery Act grants the FHFA expansive authority in its role as a conservator and permits the Agency to act in what it determines is “in the best interests of the regulated entity or the Agency.” §4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a conservator, it may aim to rehabilitate the regulated entity in a way that, while not in the best interests of the regulated entity, is beneficial to the Agency and, by extension, the public it serves. This feature of an FHFA conservatorship is fatal to the shareholders’ statutory claim. The third amendment was adopted at a time when the companies had repeatedly been unable to make their fixed quarterly dividend payments without drawing on Treasury’s capital commitment. If things had proceeded as they had in the past, there was a possibility that the companies would have consumed some or all of the remaining capital commitment in order to pay their dividend obligations. The third amendment’s variable dividend formula eliminated that risk, and in turn ensured that all of Treasury’s capital was available to backstop the companies’ operations during difficult quarters. Although the third amendment required the companies to relinquish nearly all of their net worth, the FHFA could have reasonably concluded that this course of action was in the best interests of members of the public who rely on a stable secondary mortgage market. Pp. 13–15.
(b) The shareholders argue that the third amendment did not actually serve the best interests of the FHFA or the public because it did not further the asserted objective of protecting Treasury’s capital commitment. First, they claim that the FHFA agreed to the amendment at a time when the companies were on the precipice of a financial uptick which would have allowed them to pay their cash dividends and build up capital buffers to absorb future losses. Thus, the shareholders assert, sweeping all the companies’ earnings to Treasury increased rather than decreased the risk that the companies would make further draws and eventually deplete Treasury’s commitment. But the success of the strategy that the shareholders tout was dependent on speculative projections about future earnings, and recent experience had given the FHFA reasons for caution. The nature of the conservatorship authorized by the Recovery Act permitted the Agency to reject the shareholders’ suggested strategy in favor of one that the Agency reasonably viewed as more certain to ensure market stability. Second, the shareholders claim that the FHFA could have protected Treasury’s capital commitment by ordering the companies to pay the dividends in kind rather than in cash. This argument rests on a misunderstanding of the agreement between the companies and Treasury. Paying Treasury in kind would not have satisfied the cash dividend obligation; it would only have delayed that obligation, as well as the risk that the companies’ cash dividend obligations would consume Treasury’s capital commitment. Choosing to forgo this option in favor of one that eliminated the risk entirely was not in excess of the FHFA’s authority as a conservator. Finally, the shareholders argue that because the third amendment left the companies unable to build capital reserves and exit conservatorship, it is best viewed as a step toward liquidation, which the FHFA lacked the authority to take without first placing the companies in receivership. This characterization is inaccurate. Nothing about the third amendment precluded the companies from operating at full steam in the marketplace, and all available evidence suggests that they did. The companies were not in the process of winding down their affairs. Pp. 15–17.
2. The Recovery Act’s restriction on the President’s power to remove the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional. Pp. 17–36.
(a) The threshold issues raised in the lower court or by the federal parties and appointed amicus do not bar a decision on the merits of the shareholders’ constitutional claim. Pp. 17–26.
(i) The shareholders have standing to bring their constitutional claim. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. First, the shareholders assert that the FHFA transferred the value of their property rights in Fannie Mae and Freddie Mac to Treasury, and that sort of pocketbook injury is a prototypical form of injury in fact. See Czyzewski v. Jevic Holding Corp., 580 U. S. ___, ___. Second, the shareholders’ injury is traceable to the FHFA’s adoption and implementation of the third amendment, which is responsible for the variable dividend formula. For purposes of traceability, the relevant inquiry is whether the plaintiffs’ injury can be traced to “allegedly unlawful conduct” of the defendant, not to the provision of law that is challenged. Allen v. Wright, 468 U. S. 737, 751. Finally, a decision in the shareholders’ favor could easily lead to the award of at least some of the relief that the shareholders seek. Pp. 17–19.
(ii) The shareholders’ constitutional claim is not moot. After oral argument was held in this case, the FHFA and Treasury agreed to amend the stock purchasing agreements for a fourth time. That amendment eliminated the variable dividend formula that caused the shareholders’ injury. As a result, the shareholders no longer have any ground for prospective relief, but they retain an interest in the retrospective relief they have requested. That interest saves their constitutional claim from mootness. P. 19.
(iii) The shareholders’ constitutional claim is not barred by the Recovery Act’s “succession clause.” §4617(b)(2)(A)(i). That clause effects only a limited transfer of stockholders’ rights, namely, the rights they hold “with respect to the regulated entity” and its assets. Ibid. Here, by contrast, the shareholders assert a right that they hold in common with all other citizens who have standing to challenge the removal restriction. The succession clause therefore does not transfer to the FHFA the constitutional right at issue. Pp. 20–21.
(iv) The shareholders’ constitutional challenge can proceed even though the FHFA was led by an Acting Director, as opposed to a Senate-confirmed Director, at the time the third amendment was adopted. The harm allegedly caused by the third amendment did not come to an end during the tenure of the Acting Director who was in office when the amendment was adopted. Rather, that harm is alleged to have continued after the Acting Director was replaced by a succession of confirmed Directors, and it appears that any one of those officers could have renegotiated the companies’ dividend formula with Treasury. Because confirmed Directors chose to continue implementing the third amendment while insulated from plenary Presidential control, the survival of the shareholders’ constitutional claim does not depend on the answer to the question whether the Recovery Act restricted the removal of an Acting Director. The answer to that question could, however, have a bearing on the scope of relief that may be awarded to the shareholders. If the statute does not restrict the removal of an Acting Director, any harm resulting from actions taken under an Acting Director would not be attributable to a constitutional violation. Only harm caused by a confirmed Director’s implementation of the third amendment could then provide a basis for relief. In the Recovery Act, Congress expressly restricted the President’s power to remove a confirmed Director but said nothing of the kind with respect to an Acting Director. When a statute does not limit the President’s power to remove an agency head, the Court generally presumes that the officer serves at the President’s pleasure. See Shurtleff v. United States, 189 U. S. 311, 316. Seeing no grounds for departing from that presumption here, the Court holds that the Recovery Act’s removal restriction does not extend to an Acting Director and proceeds to the merits of the shareholders’ constitutional argument. Pp. 21–26.
(b) The Recovery Act’s for-cause restriction on the President’s removal authority violates the separation of powers. In Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___, the Court held that Congress could not limit the President’s power to remove the Director of the Consumer Financial Protection Bureau (CFPB) to instances of “inefficiency, neglect, or malfeasance.” Id., at ___. In so holding, the Court observed that the CFPB, an independent agency led by a single Director, “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.” Id., at ___–___. A straightforward application of Seila Law’s reasoning dictates the result here. The FHFA (like the CFPB) is an agency led by a single Director, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power. The distinctions Court-appointed amicus draws between the FHFA and the CFPB are insufficient to justify a different result. First, amicus argues that Congress should have greater leeway to restrict the President’s power to remove the FHFA Director because the FHFA’s authority is more limited than that of the CFPB. But the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. Moreover, the test that amicus proposes would lead to severe practical problems. Courts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies. Second, amicus contends that Congress may restrict the removal of the FHFA Director because when the Agency steps into the shoes of a regulated entity as its conservator or receiver, it takes on the status of a private party and thus does not wield executive power. But the Agency does not always act in such a capacity, and even when it does, the Agency must implement a federal statute and may exercise powers that differ critically from those of most conservators and receivers. Third, amicus asserts that the FHFA’s structure does not violate the separation of powers because the entities it regulates are Government-sponsored enterprises that have federal charters, serve public objectives, and receive special privileges. This argument fails because the President’s removal power serves important purposes regardless of whether the agency in question affects ordinary Americans by directly regulating them or by taking actions that have a profound but indirect effect on their lives. Finally, amicus contends that there is no constitutional problem in this case because the Recovery Act offers only “modest” tenure protection. But the Constitution prohibits even “modest restrictions” on the President’s power to remove the head of an agency with a single top officer. Id., at ___. Pp. 26–32.
(c) The shareholders seek an order setting aside the third amendment and requiring that all dividend payments made pursuant to that amendment be returned to Fannie Mae and Freddie Mac. In support of this request, they contend that the third amendment was adopted and implemented by officers who lacked constitutional authority and that their actions were therefore void ab initio. This argument is neither logical nor supported by precedent. All the officers who headed the FHFA during the time in question were properly appointed. There is no basis for concluding that any head of the FHFA lacked the authority to carry out the functions of the office or that actions taken by the FHFA in relation to the third amendment are void. That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law, it is still possible for an unconstitutional provision to inflict compensable harm. The possibility that the unconstitutional restriction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled out. The parties’ arguments on this point should be resolved in the first instance by the lower courts. Pp. 32–36.
938 F. 3d 553, affirmed in part, reversed in part, vacated in part, and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Kavanaugh, and Barrett, JJ., joined in full; in which Kagan and Breyer, JJ., joined as to all but Part III–B; in which Gorsuch, J., joined as to all but Part III–C; and in which Sotomayor, J., joined as to Parts I, II, and III–C. Thomas, J., filed a concurring opinion. Gorsuch, J., filed an opinion concurring in part. Kagan, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer and Sotomayor, JJ., joined as to Part II. Sotomayor, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined.
1 Together with No. 19–563, Yellen, Secretary of the Treasury, et al. v. Collins et al., also on certiorari to the same court.
CEDAR POINT NURSERY et al. v. HASSID et al.
Certiorari To The United States Court Of Appeals For The Ninth Circuit
No. 20–107. Argued March 22, 2021—Decided June 23, 2021
A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Cal. Code Regs., tit. 8, §20900(e)(1)(C). The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year. Organizers from the United Farm Workers sought to take access to property owned by two California growers—Cedar Point Nursery and Fowler Packing Company. The growers filed suit in Federal District Court seeking to enjoin enforcement of the access regulation on the grounds that it appropriated without compensation an easement for union organizers to enter their property and therefore constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments. The District Court denied the growers’ motion for a preliminary injunction and dismissed the complaint, holding that the access regulation did not constitute a per se physical taking because it did not allow the public to access the growers’ property in a permanent and continuous manner. A divided panel of the Court of Appeals for the Ninth Circuit affirmed, and rehearing en banc was denied over dissent.
Held: California’s access regulation constitutes a per se physical taking. Pp. 4–20.
(a) The growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments. Pp. 4–17.
(1) The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” When the government physically acquires private property for a public use, the Takings Clause obligates the government to provide the owner with just compensation. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 321. The Court assesses such physical takings using a per se rule: The government must pay for what it takes. Id., at 322.
A different standard applies when the government, rather than appropriating private property for itself or a third party, instead imposes regulations restricting an owner’s ability to use his own property. Id., at 321–322. To determine whether such a use restriction amounts to a taking, the Court has generally applied the flexible approach set forth in Penn Central Transportation Co. v. New York City, 438 U. S. 104, considering factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. Id., at 124. But when the government physically appropriates property, Penn Central has no place—regardless whether the government action takes the form of a regulation, statute, ordinance, or decree. Pp. 4–7.
(2) California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (here union organizers) the owners’ right to exclude. The right to exclude is “a fundamental element of the property right.” Kaiser Aetna v. United States, 444 U. S. 164, 179–180. The Court’s precedents have thus treated government-authorized physical invasions as takings requiring just compensation. As in previous cases, the government here has appropriated a right of access to private property. Because the regulation appropriates a right to physically invade the growers’ property—to literally “take access”—it constitutes a per se physical taking under the Court’s precedents. Pp. 7–10.
(3) The view that the access regulation cannot qualify as a per se taking because it does not allow for permanent and continuous access 24 hours a day, 365 days a year is insupportable. The Court has held that a physical appropriation is a taking whether it is permanent or temporary; the duration of the appropriation bears only on the amount of compensation due. See United States v. Dow, 357 U. S. 17, 26. To be sure, the Court in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, discussed the heightened concerns associated with “[t]he permanence and absolute exclusivity of a physical occupation” in contrast to “temporary limitations on the right to exclude,” and stated that “[n]ot every physical invasion is a taking.” Id., at 435, n. 12. But the regulation here is not transformed from a physical taking into a use restriction just because the access granted is restricted to union organizers, for a narrow purpose, and for a limited time. And although the Board disputes whether the access regulation appropriates an easement as defined by California law, it cannot absolve itself of takings liability by appropriating the growers’ right to exclude in a form that is a slight mismatch from state property law.
PruneYard Shopping Center v. Robins, 447 U. S. 74, does not cut against the Court’s conclusion that the access regulation constitutes a per se taking. In PruneYard the California Supreme Court recognized a right to engage in leafleting at the PruneYard, a privately owned shopping center, and the Court applied the Penn Central factors to hold that no compensable taking had occurred. 447 U. S., at 78, 83. PruneYard does not establish that limited rights of access to private property should be evaluated as regulatory rather than per se takings. Restrictions on how a business generally open to the public such as the PruneYard may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public. Pp. 10–15.
(4) The Court declines to adopt the theory that the access regulation merely regulates, and does not appropriate, the growers’ right to exclude. The right to exclude is not an empty formality that can be modified at the government’s pleasure. Pp. 15–17.
(b) The Board’s fear that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property is unfounded. First, the Court’s holding does nothing to efface the distinction between trespass and takings. The Court’s precedents make clear that isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029. Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking. Under this framework, government health and safety inspection regimes will generally not constitute takings. In this case, however, none of these considerations undermine the Court’s determination that the access regulation gives rise to a per se physical taking. Pp. 17–20.
923 F. 3d 524, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kavanaugh, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.